Sovereignty Notes for January 30

Main points

We began with Hart’s distinction between the “internal” and “external” aspects of rules. One of Hart’s most basic complaints about Austin is that his analyses of command, duty, and sovereignty all suffer from a failure to appreciate the internal aspect.

Then we talked about Austin’s analysis of sovereignty and Hart’s objections to it. Warning: the objections that I presented are from parts of Hart’s book that were not reproduced in our textbook.

The internal aspect

It seems to me that whoever said that the internal aspect is necessary for explaining why people do some of the things they do got Hart’s point exactly right. (Sorry, I’ve crossed too many time zones with too little sleep to remember exactly who it was; I’ll be more on the ball soon, though).

When people try to follow the rules of a game or a legal system, they take certain things as signs to do something. A stop sign means to stop, getting a hit in baseball means to run, being called on in class means you should speak, and so on.

Of course, you could have a variety of motives for doing any of these things. You might stop at the sign because you want to be a law abiding citizen. Or you might want to avoid detection so you can blow up a bomb later. You might want to get to second base so your team can win the game. Or you might want to do so in order to unfurl your political banner in the middle of the field. You might want to speak up because you have an idea that you want to share. Or you might just want to impress a classmate. Rule following behavior is one thing, motivation is another.

Hart thinks that rule following behavior is the key to understanding the law. The law is a set of rules and the way we relate to it displays the characteristics of rule following behavior.

Here’s one way of putting Hart’s problem with Austin: he conflated rule following with the motive to follow rules. Austin’s theoretical statements don’t recognize the phenomenon of rule following behavior. Instead, he tended to look for only for a motive. So, for instance, he proposed that obligation always involves fear of sanction.